Legislation Passed to Punish Racists
In the United States, we have a history of passing laws and policies designed to punish racists. This is especially evident within the criminal justice system.
One example is a law that permits defendants to appeal their convictions if they feel the trial was unfair or biased against them, through what’s known as “habeas corpus”.
1. California’s CRJA
In 2020, California lawmakers passed the groundbreaking California Racial Justice Act (CRJA). This landmark piece of legislation seeks to eradicate racism from the criminal legal system by giving those who are unfairly convicted, sentenced, or charged with crimes a chance to challenge their status based on racial discrimination.
Law allows a person to file a motion at trial before sentencing that challenges four types of racial discrimination in criminal courts: bias exhibited directly towards the defendant by judges, jurors, attorneys, expert witnesses or law enforcement; language used during trial which promotes racism; disparities (differences/inequalities) between criminal charges brought against someone and convictions issued; as well as disparities in sentencing practices.
Two Black people in Riverside County have filed a pre-trial challenge to their death penalty case against the District Attorney under the Civil Rights Act (CRJA). They contend that statistical racial disparities in their case — situated within an extensive history of anti-Black discrimination and violence — meet the initial burden for showing a violation under CRJA, thus providing them with an evidentiary hearing and potential legal relief.
In Orange County, the Public Justice League of California has filed an amicus letter in California State Supreme Court asking it to review OCDA’s unlawful refusal to share data that could be used to prove a CRJA violation. Despite public requests, OCDA has worked to conceal evidence necessary to prove discrimination in cases, making it harder for individuals to assert their rights.
Although this law is an important step in eliminating racial discrimination from criminal legal systems, it does not go far enough. It does not prohibit gang injunctions or arbitrary detentions, nor does it address racial profiling and discriminatory police practices.
The CRJA has taken an important first step toward addressing these issues, but we need more than one law to truly fix our system. We need a system that values justice and guarantees access for all people regardless of race. Until that can happen, more lawmakers who are willing to stand up for people of color must come forward and pass laws like the CRJA.
2. California’s SB4
In response to President Obama’s announcement, California lawmakers have passed two bills that aim to tackle systemic racism within the criminal legal system. AB 2542 (Kalra) and AB 256 (Minsker) prohibit using race, ethnicity or national origin as grounds for seeking convictions or imposing sentences and reduce discrimination during jury selection.
AB 256 also affirms the necessity for redress in cases of racism. According to Amber-Rose Howard, director of Californians United for a Responsible Budget, this bill “clears the path toward a process that addresses the disproportionate impact of racism on those incarcerated for our state’s most serious crimes,”
Kalra’s bill is the first of its kind to become law, making it much simpler for individuals in prison to challenge explicit discrimination in court systems. This is an essential development since the U.S. Supreme Court’s 1987 McCleskey v Kemp decision makes it virtually impossible for those accused of criminal offenses to prove intentional discrimination in their defense.
Kalra’s bill has garnered widespread support within and outside of the legal community. Organizations such as ACLU of Northern California, ACLU of San Francisco, AFSC, Asian Pacific Islander Legal Resource Center and Coalition for Women Prisoners have all publicly endorsed it.
The bill has the support of religious communities and higher education institutions alike, offering free land to developers for residential construction if developers meet certain density limits and pay construction workers prevailing wages. The California Conference of Carpenters has even endorsed the measure; however, some potential sponsors have complained that paying high union wages increases costs and in some cases makes projects uneconomical for religious builders.
But an amendment pushed through by the oil industry this week further erodes SB 4. These amendments threaten to weaken CEQA protections that are essential for safeguarding water and air quality in California, while also allowing state regulators to approve fracking requests prior to an environmental review being completed. This could allow drilling in uncharted territories – a dangerous move that should be vigorously rejected by Californians.
3. New York City’s CRJA
New York boasts some of the most progressive and effective antidiscrimination laws in America, protecting people from discrimination in housing, employment, public accommodations on basis of race/color, religion/creed, national origin, age, gender disability (including COVID-19), military service marital status and partnership status; it also prohibits retaliation harassment as well as bias-based profiling by law enforcement officers.
New York’s Human Rights Law may be comprehensive, but it still contains discriminatory elements. For instance, the NYC Human Rights Commission recently released a factsheet that details some of the ways students of Color are targeted in K-12 schools.
These schools often experience hostile racial climates that dehumanize and deny academic and economic opportunities to students of Color. Furthermore, many have been linked to racial profiling, as well as systemic racist policies.
New York’s Criminal Rights Justice Act (CRJA) is an essential piece of legislation designed to combat racism in the criminal legal system. It allows defendants to challenge more subtle forms of implicit and institutional racism without having to prove that such prejudice existed at their arrest or conviction.
The CRJA takes aim at the Supreme Court’s McCleskey decision, which effectively eliminated constitutional challenges based on showing that the death penalty had been applied with discriminatory intent. By opening up access to racism in all its forms — explicit, implicit and structural — within criminal legal administration, the CRJA ensures that discriminatory applications of death penalties will no longer serve as grounds for constitutional challenge.
Furthermore, the CJRA moves most enforcement of certain low-level nonviolent offenses out of criminal courts and prevents New Yorkers from having a permanent criminal record and issuing over 50,000 warrants annually. This has resulted in an impressive reduction in criminal summonses and associated warrants issued by the NYPD since its implementation in 2017, according to DCJ estimates. DCJ projects that the CRJA will reduce over 123,000 criminal summonses and 58,000 associated warrants over 18 months following its introduction in June 2017.
4. New York City’s CRJA
New York City’s Criminal Redress and Liability Act of 2017, passed in 2017, is a groundbreaking step to combat racism in the criminal legal system. It gives defendants the ability to challenge racism on all levels – explicit, implicit and structural – without needing to prove intent. Furthermore, it takes direct aim at Supreme Court rulings such as McCleskey which shut down constitutional challenges that depend on proving racist application of death penalty provisions.
Before the law, New Yorkers received more than 150,000 criminal summonses annually for matters such as having an open container of alcohol in a park after hours, littering and public urination – forcing them to take days off work or risk an arrest warrant. Through CRJA legislation however, 100,000 cases are now sent to civil court instead of criminal court each year, saving about 10,000 individuals from having a permanent criminal record and avoiding 50,000 arrest warrants annually.
Within one year after implementation of the law, criminal summonses and associated warrants were reduced by nearly 94%; 73% of people who received civil CJRA summonses chose to participate in OATH’s community service program instead of paying a fine (with young women and men aged 16-17 being most likely to take advantage of this option).
These results demonstrate the impact of the CJJA. The NYC Police Department has shifted most enforcement of CJRA violations to administrative courts within the city, which are much faster and less expensive than criminal courts.
The CRJA is just one of several laws passed by the NYC Council to improve lives for all New Yorkers. Their broad objectives include creating affordable housing, decreasing incarceration rates, and expanding access to health care.
In addition, the Council’s Human Rights Commission is responsible for upholding one of America’s strongest anti-discrimination laws. This initiative strives to safeguard New Yorkers from discrimination in employment, housing and public accommodations based on race/color, religion/creed, age, national origin immigration or citizenship status gender identity disability pregnancy military service or marital status.
